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January 21, 2019

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Legal Protections for Sources and Source Material

The use of subpoenas, search warrants, and discovery ordersin litigation that seek to acquire information about your confidentialsources or source material can place a substantial burden on yournewsgathering and online publishing activities, as well as on the freeflow of information in society.

Fortunately, you are not powerless when faced with a demandfor information obtained in the course of your newsgatheringactivities. Legal protections exist to protect those who gather newsfrom having to reveal the identity of their confidential sources andfrom having to disclose unpublished information collected in the courseof newsgathering. This section looks at the laws that provideprotection and outlines the character and scope of that protection.Keep in mind that the legal protections available to you differmarkedly from state to state. For information on state shield laws andother legal protections for sources and source material in the fifteenmost populous U.S. states and the District of Columbia, please see the state-specific pages.

There are a number of different sources of legal protection forsources and source material. These include state shield laws, federaland state constitutional provisions, federal statutes, and common lawprivileges. In some geographical locations, only one or two sources ofprotection are available. In others, you may be able to take advantageof several sources of legal protection.

State Legislative Protections

More than thirty U.S. states currently have shield laws that providesome level of protection for journalists and others who gatherinformation for dissemination to the public. The first state shield lawwas enacted in Maryland on April 2, 1896, in response to theimprisonment of a Baltimore Sun reporter for refusing to reveala confidential source to a grand jury. Over the years, other stateshave followed suit, recognizing the importance of a reporter's shieldfor supporting the public's "right to know."

The scope of shield law protection varies from state to state.The primary differences revolve around the following three questions:

What kind of information does the shield law protect? Some state shield laws only protect the identity of a confidential source, while others protect the identity of a source whether or not you have promised the source confidentiality. In other states, the law protects not only the identity of a source, but also unpublished information collected during newsgathering, such as information provided by a source, a reporter's unpublished notes, outtakes, and work product. Even among this group, there are some differences about exactly what information the shield law protects.

Who is entitled to the protection of the shield law? Some state shield laws limit their application to individuals who have a professional affiliation with an established media entity or require “regular” employment as a journalist. Other states expressly exclude broadcast and electronic media from coverage. Yet others offer the privilege to a larger group of people who publish information, such as freelancers, authors, electronic publishers, and educators. This question is of critical importance to citizen media sites and online publishers of all kinds. One important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), extended the coverage of California's shield law to online news sites, despite language in the shield law suggesting that only reporters publishing in traditional media were covered. See the California Protections for Sources and Source Material page for details. This area of law, while currently uncertain, is sure to develop significantly in coming years.

Assuming the shield law applies, how strong is its protection? Some states provide those individuals covered by their shield laws with an "absolute" privilege against revealing sources and source material (or just sources, as the case may be). This means that a court or other legal body may not force that individual to reveal the information in question under any circumstances. In other states, shield laws give covered individuals only a "qualified" privilege against revealing sources and source material (again, the precise information covered depends on the state). While the exact standards vary state-to-state, courts applying a qualified privilege generally require that the individual seeking covered information demonstrate that (1) the desired information is central to mounting a claim or defense in a lawsuit; (2) other means of obtaining the information have proven to be inadequate; and (3) the balance of the parties' interests favors disclosure.

Federal Legislative Protection

Shield Law

There presently is no federal shield law. In its last session,Congress considered but did not pass a proposed federal shield law. Themost recent version of the bill, H.R. 2102,excluded from coverage those who do not receive "a substantial portionof [their] livelihood" or "substantial financial gain" from theirnewsgathering and publishing activities. This language would probablyexclude many non-traditional journalists and amateur online publishers,as well as freelance journalists who rely on other work to supplementtheir incomes. In any event, the Congress has not enacted the bill intolaw, so future revisions are possible.

Privacy Protection Act

An important federal law may protect you with regard to search warrants.Subject to certain exceptions, the Privacy Protection Act (PPA) makesit "unlawful for a government officer or employee, in connection withthe investigation or prosecution of a criminal offense, to search foror seize" work product and documentary materials "possessed by a personin connection with a purpose to disseminate to the public a newspaper,book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa(a),(b). If the PPA applies to you, it protects you regardless of what state you live in.

What kind of information is covered by the Privacy Protection Act?

The PPA covers a publisher's "work product" and "documentary materials."

"Work product" is defined as materials: (1) "prepared, produced,authored, or created, whether by the person in possession of thematerials or by any other person"; (2) "possessed for the purposes ofcommunicating such materials to the public"; and(3) "include mental impressions, conclusions, opinions, or theories ofthe person who prepared, produced, authored, or created such material."42 U.S.C. § 2000aa-7(b)(1).Work product thus includes things like your notes, drafts, andouttakes. Work product does not include contraband, "fruits" of crime,or materials intended to be or actually used in the commission of acrime.

"Documentary materials" are also defined broadly as "materialsupon which information is recorded, and includes, but is not limitedto, written or printed materials, photographs, motion picture films,negatives, video tapes, audio tapes, and other mechanically,magnetically or electronically recorded cards, tapes, or discs." Id. §2000aa-7(a). As with work product, the definition does not includecontraband, "fruits" of crime, or materials intended to be or actuallyused in the commission of a crime.

Who is covered?

While the law on this point is not yet clear, the language ofthe PPA -- reaching "a person in connection with a purpose todisseminate to the public a newspaper, book, broadcast, or other similar form of public communication" -- suggests that it may cover online publishers.

How strong is the protection?

The PPA does not function like a shield law, which allows areporter to refuse to comply with a subpoena or other discovery order.Instead, the PPA allows you to file a civil lawsuit for damages afterthe search and/or seizure takes place, if you believe it violated thelaw.

There are a number of exceptions to the PPA. Most importantly,government officials can legally carry out a search and/or seizureotherwise covered by the PPA if there is "probable cause" to believethat the reporter (or other publisher) has evidence linking him or herto a crime. 42 U.S.C. § 2000aa(b)(1).The government cannot invoke this exception, however, if the only"offense to which the materials relate consists of the receipt,possession, communication, or withholding of such materials or theinformation contained therein," unless the materials relate to thenational defense or classified information. Id. There is also anexception when authorities have reason to believe that death or seriousinjury will result if the search is delayed. Id. § 2000aa(b)(2).

Constitutional Protections

Federal Constitution

A number of state and federal courts have found that the FreeSpeech Clause of the First Amendment of the U.S. Constitution creates a"reporter's privilege" against having to disclose the identity ofconfidential sources and/or turning over unpublished newsgatheringmaterials. While the law is not settled, online publishers may be ableto take advantage of this reporter's privilege. The constitutionalreporter's privilege is not, however, universally recognized.Furthermore, even when recognized, it only provides a "qualifiedprivilege," meaning that the person seeking information can overcome itwith a strong showing of need.

Courts that recognize a privilege based on the First Amendment often make reference to the U.S. Supreme Court's decision in Branzburg v. Hayes,408 U.S. 665 (1972). Branzburg is the only case in which the U.S.Supreme Court has addressed the federal reporter's privilege.Unfortunately, it is also a famously confusing case. The majorityopinion, which typically is the legally controlling opinion, held thatthe First Amendment does not provide a reporter with a privilege fromtestifying before a grand jury about information obtained and eventswitnessed in the course of researching a story. However, Justice Powellwrote a concurring opinion in which he stated that demands forinformation from journalists should "be judged on [their] facts by thestriking of a proper balance between freedom of the press and theobligation of all citizens to give relevant testimony." Because JusticePowell was a necessary fifth vote to form a majority, many courts treathis opinion as the controlling opinion. These courts frequently readhis opinion as calling for a qualified privilege for reporters underthe First Amendment.

Courts in different states and federal circuits have differentviews about the character and scope of the federal reporter'sprivilege. For more detailed information on the contours of thisprivilege, see the state pages.

State Constitutions

Quite a few state courts have found that a privilege exists forjournalists under their respective state constitutions. Some states,like California,have explicit constitutional privileges for journalists, similar inform to a shield law. In other states, courts have derived a privilegefrom general state constitutional provisions, similar to the FirstAmendment.

For more information on state constitutional privileges, see the the state pages.Keep in mind that, even when a state recognizes a state constitutionalprivilege, its exact character and scope is often uncertain.

Common Law Privileges

Some state and federal courts have created privileges fornewsgatherers under the common law (i.e., judge-made law). Common-lawprotections for confidential sources and source material differ greatlyin their scope and character. As with state and federal constitutionalprivileges, courts develop the common law of privilege on acase-by-case basis, and frequently the law is fraught with ambiguitiesand undefined "grey zones." For more information on common lawprivileges for confidential sources and source material, see the the state pages.

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Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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